COMPROMISE, SETTLEMENT, AND RELEASE AGREEMENT
Exhibit 10.96
COMPROMISE, SETTLEMENT, AND RELEASE AGREEMENT
This Compromise, Settlement, and Release Agreement (“Agreement”) is made and entered into by and among CRDENTIA CORP., a Delaware corporation (“Crdentia”); CRDE CORP, a Delaware corporation (“CRDE”); ARIZONA HOME HEALTH CARE/PRIVATE DUTY, INC., an Arizona corporation (“Arizona Home Health”); ▇▇▇▇▇▇▇ “▇▇▇▇” ▇. ▇▇▇▇▇▇▇ (“▇. ▇▇▇▇▇▇▇”); and ▇▇▇▇▇▇▇ “CAMP” ▇. ▇▇▇▇▇▇▇ (“▇. ▇▇▇▇▇▇▇”)(▇. ▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇ are sometimes collectively referred to herein as the “Crockers”)(Crdentia, CRDE, Arizona Home Health, ▇. ▇▇▇▇▇▇▇, and ▇. ▇▇▇▇▇▇▇ are sometimes referred to herein collectively as the “Parties” or singularly as a “Party”), and is effective as of March 29, 2007 (the “Effective Date”).
I.
RECITALS
WHEREAS, on or about August 26, 2004, Crdentia, CRDE, AHHC Acquisition Corporation (a wholly-owned subsidiary of CRDE), Arizona Home Health, ▇. ▇▇▇▇▇▇▇, and ▇. ▇▇▇▇▇▇▇ entered into an Agreement and Plan of Reorganization (the “Acquisition Agreement”) and related agreements, including a Receivables Allocation Agreement (the “Allocation Agreement”);
WHEREAS, pursuant to the Acquisition Agreement, AHHC Acquisition Corporation merged with and into Arizona Home Health such that Arizona Home Health remained as the surviving corporation and became a wholly-owned subsidiary of CRDE and thus part of the corporate umbrella of Crdentia;
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WHEREAS, on or about February 23, 2006, ▇. ▇▇▇▇▇▇▇ instituted a legal proceeding styled ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ v. Crdentia Corp. and Arizona Home HealthCare/Private Duty, Inc. Civil Action No. 06C-02-226 SCD; pending in the Superior Court of the State of Delaware in and for New Castle County (the “Lawsuit”), wherein ▇. ▇▇▇▇▇▇▇ asserted claims against Crdentia and Arizona Home Health for, among other things, breach of contract, declaratory relief, and conversion arising out of the Acquisition Agreement and the Allocation Agreement;
WHEREAS, on or about May 8, 2006, Crdentia, Arizona Home Health, and CRDE (as intervenor) filed their counterclaim in the Lawsuit, asserting claims against the Crockers for, among other things, fraud, indemnity, and declaratory relief arising out of the Acquisition Agreement and the Allocation Agreement;
WHEREAS, the Parties desire to avoid the additional cost, time, effort, and uncertainties that would result from litigating their respective positions and desire to enter into a settlement and complete and final release regarding the Lawsuit and all other matters between them;
WHEREAS, the Parties have agreed on all of the terms of this Agreement through extensive arms-length negotiations between the Parties and/or their counsel; and
NOW THEREFORE, in consideration of the mutual covenants, representations, warranties, and agreements undertaken herein, and other good and valuable consideration, the sufficiency of which is hereby mutually acknowledged, the Parties agree as follows:
II.
TRANSFER OF CRDENTIA COMMON STOCK TO THE CROCKERS
1. Within ten (10) days of the Effective Date, Crdentia shall issue the Crockers a total of 312,500 fully paid, non-assessable shares (156,250 shares to each of ▇. ▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇) of Crdentia common stock (the “Shares”). Crdentia represents and warrants to the
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Crockers that the issuance of such Shares has been duly authorized by all appropriate corporate action of Crdentia.
2. Investment Representations:
(a) This Agreement is made in reliance upon the Crockers’ representation to Crdentia, which by their acceptance hereof the Crockers hereby confirm, that the Shares will be acquired for investment for their own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof, and that the Crockers have no present intention of selling, granting participation in, or otherwise distributing the same. The Crockers also represent and warrant that they have sufficient business and financial experience to enable them to protect their own interests in connection with the issuance of the Shares hereunder.
(b) Each of the Crockers is an “accredited investor” as defined in Rule 501 under the Securities Act of 1933, as amended (the “Act”). Each of the Crockers believes that he has received all the information he considers necessary or appropriate for deciding whether to accept the Shares. The Crockers further represent that they have had an opportunity to ask questions and receive answers from Crdentia regarding the business, properties, prospects and financial condition of Crdentia.
(c) The Crockers understand that the Shares they are accepting hereunder are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from Crdentia in a transaction not
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involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Act only in certain limited circumstances. In this connection, the Crockers represent that they are familiar with SEC Rule 144, as presently in effect, and understand the resale limitations imposed thereby and by the Act. The Crockers understand that the Shares have not been registered under the Act and have not been registered or qualified in any state in which they are offered, and thus the Crockers will not be able to resell or otherwise transfer the Shares unless they are registered under the Act, or qualified under applicable state securities laws, or an exemption from such registration or qualification is available.
(d) It is understood that the certificate(s) evidencing the Shares shall bear the following legend:
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 144 PROMULGATED UNDER SUCH ACT.”
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3. The Crockers represent and warrant to Crdentia that, in electing to accept the Shares, they have relied solely on publicly available information regarding Crdentia and that Crdentia has not provided them with any non-public information or made any representations or warranties whatsoever regarding Crdentia’s business or the value of the Shares.
III.
DESIGNATED RECEIVABLES
4. The Crockers hereby assign to Crdentia and/or Arizona Home Health all of their right, title, and interest, if any, in and to the Designated Receivables (as defined in the Allocation Agreement), including but not limited to any and all receivables listed on the exhibit attached hereto as Exhibit “A.”
5. The Crockers agree that any monies previously collected by Crdentia and/or Arizona Home Health and not previously remitted to the Shareholder Representative (as defined in the Allocation Agreement) in respect of the Designated Receivables shall remain the sole property of Crdentia and/or Arizona Home Health, and the Crockers agree that they shall have no rights whatsoever to such monies. Further, the Crockers agree that any monies collected by Crdentia and/or Arizona Home Health in respect of the Designated Receivable in the future shall be the sole property of Crdentia and/or Arizona Home Health, and the Crockers agree that they shall have no rights whatsoever to such monies.
6. The Crockers agree that Crdentia and/or Arizona Home Health shall have no further obligations to the Crockers under’ the Allocation Agreement.
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IV.
MUTUAL GENERAL RELEASES
7. For and in consideration of the terms set forth herein, ▇. ▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇ on behalf of themselves and their predecessors, successors, corporations, partners, joint venturers, partnerships, affiliates, representatives, agents, attorneys, employees, spouses, insurers, assigns, beneficiaries, and related entities, hereby fully and forever GENERALLY RELEASE, ACQUIT, DISCHARGE, DISCLAIM, and RENOUNCE any and all claims, demands, damages, actions, causes of action, and/or suits of whatever nature, in law or equity, statutory, common law, or otherwise, that they have, might have, or ever had, known and realized or unknown and not realized, that are based in whole or in part on any conduct, fact, matter, act, omission, cause, transaction, or thing whatsoever, occurring from the beginning of time through the Effective Date of this Agreement, against Crdentia, CRDE, and/or Arizona Home Health, and/or any of their past, present, and future parent entities, affiliates, subsidiaries, shareholders, officers, directors, partners, partnerships, fiduciaries, trustees, employees, agents, insurers, predecessors, successors, assigns, attorneys, spouses, administrators, and related entities, including but not limited to any matters that are based on, arise out of, or are in any way related to or connected with the allegations in the Lawsuit, the Acquisition Agreement, or the Allocation Agreement. Notwithstanding anything to the contrary herein, this release does not release the obligations of the Parties set forth in this Agreement.
8. For and in consideration of the terms set forth herein, Crdentia, CRDE, and Arizona Home Health, on behalf of themselves and their predecessors, successors, corporations, parents, subsidiaries, members, partners, joint venturers, partnerships, affiliates, representatives, agents, attorneys, employees, officers, directors, insurers, assigns, and beneficiaries, hereby fully
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and forever GENERALLY RELEASE, ACQUIT, DISCHARGE, DISCLAIM, and RENOUNCE any and all claims, demands, damages, actions, causes of action, and/or suits of whatever nature, in law or equity, statutory, common law, or otherwise, that they have, might have, or ever had, known and realized or unknown and not realized, that are based in whole or in part on any conduct, fact, matter, act, omission, cause, transaction, or thing whatsoever, occurring from the beginning of time through the Effective Date of this Agreement, against ▇. ▇▇▇▇▇▇▇ and/or ▇. ▇▇▇▇▇▇▇ and/or any of their past, present, and future predecessors, successors, corporations, partners, joint ventures, partnerships, affiliates, representatives, agents, attorneys, employees, spouses, insurers, assigns, beneficiaries, and related entities, including but not limited to any matters that are based on, arise out of, or are in any way related to or connected with the allegations in the Lawsuit, Acquisition Agreement, or the Allocation Agreement. Notwithstanding anything to the contrary herein, this release does not release the obligations of the Parties set forth in this Agreement.
V.
DISMISSAL OF LAWSUIT
9. Upon receipt by the Crockers of the certificates representing the Shares, the Parties shall immediately file a joint motion to dismiss the Lawsuit with prejudice and request the Court to execute an order regarding the same that provides that the Lawsuit is dismissed with prejudice and that all costs of court shall be taxed against the party incurring same. Counsel for the Crockers will draft and file such the motion and order with the Court.
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VI.
ADDITIONAL PROVISIONS
10. The Parties represent and warrant that they have been duly authorized by all requisite action (via shareholder, board and/or court approval or otherwise, as necessary) to execute and enter into this Agreement and that the persons executing this Agreement have the full power, capacity, and authority to execute this Agreement on behalf of any Party so indicated.
11. The Parties represent and warrant that they have not assigned or transferred any of the rights, claims, or causes of action that are being released pursuant to this Agreement.
12. This Agreement cannot be revised, extinguished, or otherwise amended orally. This Agreement may be revised, extinguished, or otherwise amended only by a writing signed by all of the Parties or their respective duly authorized representatives.
13. No breach of any provision of this Agreement can be waived by any Party unless it is done in writing and all of the Parties agree to the waiver in writing. The waiver of any breach of a provision of this Agreement by a Party shall not be deemed to be a waiver of any other breach of the same or other provisions of the Agreement.
14. The Parties and/or their counsel have jointly reviewed and revised and otherwise contributed to the drafting of this Agreement and, as a result, the Parties agree that any normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed to the interpretation of this Agreement.
15. Any section headings have been inserted only for convenience of reference and shall not be afforded any effect in the construction or interpretation of this Agreement.
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16. The Parties agree that this Agreement constitutes the entire agreement between the Parties and supersedes all prior discussions, negotiations, understandings, and agreements, whether oral or written, all of which are merged herein.
17. Should any provision, term, or condition of this Agreement be declared or determined by any court of competent jurisdiction to be illegal, unenforceable, or invalid, the validity or legality of the remaining parts, terms, or provisions shall not be affected thereby and shall continue in full force and effect and said illegal or invalid provision, term, or condition shall be deemed not to be part of this Agreement.
18. Neither the negotiation, execution, or entry of this Agreement, nor any payment of any consideration contemplated by this Agreement, shall constitute or shall be construed as an acknowledgment or admission of liability. This Agreement constitutes a compromise and settlement and shall not be deemed an admission by any Party of liability to any other Party or to any person or entity, all liability being expressly denied by the Parties. Neither this Agreement, nor any of its terms, shall be offered or received in evidence in any proceeding or utilized in any manner whatsoever as an admission of any wrongdoing of any nature or any liability therefore on the part of the Parties.
19. No Party shall be in breach of any covenant, agreement, or obligation hereunder unless such Party fails to cure any alleged breach within ten (10) days from the receipt of written notice specifying the circumstances of such breach from any other Party.
20. All notices and communications hereunder shall be in writing and shall be delivered via personal delivery, via certified mail, return receipt requested, or via a reputable overnight delivery service to the Parties at the addresses indicated in the Acquisition Agreement.
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21. This Agreement shall be governed by and interpreted according to the substantive laws of the State of Arizona, excluding its choice of law rules.
22. Any legal proceedings arising out of the formation, execution, or performance of this Agreement, or any of the Parties’ rights or remedies hereunder, shall be brought solely in the state or federal courts in Maricopa County, Arizona.
23. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
- END OF TEXT OF AGREEMENT -
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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THE STATE OF ARIZONA |
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COUNTY OF MARICOPA |
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This instrument was acknowledged before me on this day of April, 2007, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, for the purposes and consideration set forth herein.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Notary Public, State of |
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[SEAL] |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, |
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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THE STATE OF ARIZONA |
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COUNTY OF MARICOPA |
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This instrument was acknowledged before me on this 6 day of April, 2007, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, for the purposes and consideration set forth herein.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Notary Public, State of |
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Notary’s Printed Name |
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[SEAL] |
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CRDENTIA CROP. |
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By: |
/s/ C. ▇▇▇▇ ▇▇▇▇▇ |
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Name: |
C. ▇▇▇▇ ▇▇▇▇▇ |
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Title: |
Chairman |
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THE STATE OF CALIFORNIA |
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COUNTY OF SAN FRANCISCO |
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This instrument was acknowledged before me on this 9th day of April, 2007, by C. ▇▇▇▇ ▇▇▇▇▇, as the Chairman of Crdentia Corp., for the purposes and consideration set forth herein.
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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[SEAL] |
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Notary Public, State of California |
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Notary’s Printed Name |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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CRDE CORP. |
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By: |
/s/ C. ▇▇▇▇ ▇▇▇▇▇ |
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Name: |
C. ▇▇▇▇ ▇▇▇▇▇ |
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Title: |
Chairman |
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THE STATE OF CALIFORNIA |
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COUNTY OF SAN FRANCISCO |
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This instrument was acknowledged before me on this 9th day of April, 2007, by C. ▇▇▇▇ ▇▇▇▇▇, as the Chairman of CRDE Corp., for the purposes and consideration set forth herein.
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[SEAL] |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Notary Public, State of California |
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Notary’s Printed Name |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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ARIZONA HOME HEALTH CARE/PRIVATE DUTY, INC., |
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By: |
/s/ C. ▇▇▇▇ ▇▇▇▇▇ |
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Name: |
C. ▇▇▇▇ ▇▇▇▇▇ |
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Title: |
Chairman |
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THE STATE OF CALIFORNIA |
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COUNTY OF SAN FRANCISCO |
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This instrument was acknowledged before me on this 9th day of April, 2007, by C. ▇▇▇▇ ▇▇▇▇▇, as the Chairman of Arizona Home Health Care/Private Duty, Inc., for the purposes and consideration set forth herein.
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[SEAL] |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Notary Public, State of California |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Client |
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Status |
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Amount |
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▇▇▇▇ ▇▇▇▇▇▇-MD Home Health |
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Possibly collectible |
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1,440 00 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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Possibly collectible |
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640 00 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Possibly collectible |
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1,220 00 |
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▇▇▇▇▇ ▇▇▇▇▇▇ |
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Possibly collectible |
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450 00 |
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Saguaro Horizons |
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Possibly collectible |
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3,964 50 |
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Arizona Surgical Hospital |
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Pymts Located |
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1,114 50 |
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▇▇▇▇▇ ▇▇▇▇▇▇ |
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Pymts Located |
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1,288 00 |
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▇▇▇▇▇ ▇▇▇▇▇▇ |
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Pymts Located |
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2,175 50 |
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▇▇▇▇▇ ▇▇▇▇▇▇ |
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Pymts Located |
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3,094 75 |
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Northwest Hospital |
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Pymts Located |
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2,252 00 |
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Palo Verde Hospital |
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Pymts Located |
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1,332 25 |
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Posada Del Sol |
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Pymts Located |
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7,603 14 |
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Sonora |
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Pymts Located |
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1,225 50 |
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Tuscon Medical Center |
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Pymts Located |
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843 38 |
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Casa Grande Regional |
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Short Paid/Adj |
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-1,741 01 |
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Casa Grande Regional |
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Short Paid/Adj |
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-2,335 50 |
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Casa Grande Regional |
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Short Paid/Adj |
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193 00 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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Short Paid/Adj |
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69 ▇▇ |
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇▇/▇▇▇ |
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28,497 37 |
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MIHS Health |
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Short Paid/Adj |
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-356 50 |
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MIHS Health |
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Short Paid/Adj |
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11 40 |
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▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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Short Paid/Adj |
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0 50 |
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St Joseph’s Hospital |
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Short Paid/Adj |
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-53 44 |
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Tuscon Medical Center |
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Short Paid/Adj |
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-16 00 |
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University Physicans Hospital |
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Short Paid/Adj |
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861 50 |
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University Physicans Hospital |
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Short Paid/Adj |
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822 50 |
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University Physicans Hospital |
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Short Paid/Adj |
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108 00 |
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University Physicans Hospital |
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Short Paid/Adj |
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-7,448 88 |
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University Physicans Hospital |
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Short Paid/Adj |
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212 00 |
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Posada Del Sol |
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Cr Adj due Client |
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4,176 13 |
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Arizona State Prison ▇▇▇▇▇▇ |
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no invoice copy located |
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14,056 00 |
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Arizona State Prison ▇▇▇▇▇▇ |
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no invoice copy located |
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45 00 |
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Central Arizona Detention Ctr |
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no invoice copy located |
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15,327 00 |
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▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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no invoice copy located |
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13,605 00 |
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Desert Samaritan |
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no invoice copy located |
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218 25 |
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Eldorado Hospital |
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no invoice copy located |
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2,264 75 |
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▇▇▇▇▇▇▇▇ Correctional |
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no invoice copy located |
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5,633 75 |
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▇▇▇▇▇ ▇▇▇▇▇▇ |
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no invoice copy located |
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2,669 75 |
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▇▇▇▇▇▇ ▇▇▇▇ |
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no invoice copy located |
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3,047 50 |
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▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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no invoice copy located |
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5,133 50 |
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Seaohf |
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no invoice copy located |
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628 00 |
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▇▇▇▇ ▇▇▇▇-Mercy Care |
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Possibly collectible |
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57,142 03 |
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171,414.12 |
